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Court Decision Undermines Chief Erwin’s Capitol Crackdown

By Hematite

Sometimes good news comes wrapped in bad packages.

Jason Huberty being arrested for holding text from the Wisconsin Constitution. Photo by Rebecca Kemble

News that a lawsuit against the DoA and Capitol Police for arrests made in March, 2011 for holding signs on the first floor of the Capitol had been dismissed felt like a hard blow to first amendment activists when it first broke on Thursday morning.

But a closer look at the judge’s decisionreveals more than just a silver lining. In his order granting Summary Judgment for Dismissal, Judge Remington, who compared himself to a “Monday Morning Quarterback” reviewing the facts of the case after the political heat of the 2011 protests and 2012 recall elections has died down, clobbered the State:

“An “as applied” challenge requires the Plaintiffs to show that the rule was applied to them in an unconstitutional manner. See Eggert Group, LLC v. Town of Harrison, 372 F. Supp. 2d 1123, 1134 (E.D. Wis. 2005). However, the Plaintiff cannot establish what rule was even applied to them. This observation is not intended as a criticism of the Plaintiffs. Indeed it is entirely possible that this is one reason the District Attorney declined to prosecute these cases. Without first determining what substantive rule the Plaintiffs violated, there is no way for this (or any) Court to determine whether the application of that substantive rule was unconstitutional. Accordingly, the Plaintiffs cannot bring an as applied constitutional challenge to § Adm. 2.07(2) or any of the other substantive rules the parties suggest.”

Whitney Steffen is arrested for holding a sign with references to freedom of speech and assembly. Photo by Rebecca Kemble

In other words, the suit asked the court to determine that the administrative rules under which the Plaintiff was arrested were unconstitutional, but because the arrests were so sloppy it was impossible for the court to determine exactly what administrative rule allegedly was violated, and thus impossible to decide whether or not it was constitutional.

Moreover, the court specifically says that § Adm. 2.07(2) (unlawful display), the rule under which all of the recent citations have been issued, DOES NOT apply to hand held signs, because handheld signs are not displays. Unlike the arrests dealt with in the suit, the citations issued to eleven people over the past two days cite this rule specifically. The court has explicitly declared these arrests to be inappropriate. The decision does not hurt those who were recently arrested under this rule should they decide to sue the Department of Administration for violation of their constitutional right to free speech.